Could a governor-commissioned South Carolina DNR officer also serve on a school board in 2006?

Plain-English summary

In 2006, the South Carolina Attorney General concluded that Richard P. Dye could serve on the Sumter County School District Two board while working as a Department of Natural Resources enforcement officer. A school board seat counted as an office under the state's dual office holding provision. But the constitution expressly excepted constables, and the Attorney General treated a DNR officer commissioned by the Governor as a constable for that purpose.

The requester confirmed he had received a gubernatorial commission. That fact mattered. The opinion relied on an earlier Attorney General opinion distinguishing those DNR officers from municipal police officers, who lacked the same commission and were not treated as constables under the cited Supreme Court analysis.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was a county school board seat an office under the dual office rule?
A: Yes. The Attorney General said its earlier opinions consistently treated county school board membership as an office.

Q: Why could this DNR officer hold both positions?
A: He had a commission from the Governor, which the opinion treated as placing him within the constitutional exception for constables.

Q: Did the opinion exempt every law enforcement officer?
A: No. Its reasoning depended on the governor's commission and distinguished municipal police officers who were not commissioned that way.

Background and statutory framework

The opinion quoted South Carolina's prohibition on holding two offices at once and its express exceptions. It then applied a prior opinion on commissioned DNR officers and a state Supreme Court decision discussing constable status. The conclusion was tied to the requester's confirmed DNR commission.

Citations and references

The linked opinion quotes Article XVII, section 1A of the South Carolina Constitution and discusses Richardson v. Town of Mount Pleasant in its analysis of the constable exception.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-16-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06aug16dye.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GENERAL

August 16, 2006

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Mr. Richard P. Dye
1505 Poole Road
Sumter, South Carolina 29154
Dear Mr. Dye:
We issue this opinion in response to your letter concerning dual office holding. According to your letter, you ask whether serving on the Sumter County School District Two School Board while employed as an enforcement officer with the South Carolina Department ofNatural Resources ("DNR") violates the dual office holding prohibition contained in the South Carolina Constitution. Based on our findings below, we believe an enforcement officer with DNR is a constable. Therefore, your service in this capacity would be exempt from the dual office holding prohibition should you hold another office, including membership on the Sumter County School District Two School Board.

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Law/Analysis

Article XVII, section IA of the South Carolina Constitution (Supp. 2005) prohibits a person from holding "two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." In order to contravene this provision, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171 , 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the posi tion, proscribes the position's duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 6 l , 62 (1980). On n umerous occasions, this Office determined membership on a county school board or board of trustees constitutes an office for dual office holding purposes. See Ops. Atty. Gen., June 16, 2006; January 29, 1997; July 3 1, 1992. According]y, we must determine whether your posi tion as an enforcement officer with DNR is an office for dual office holding purposes.

Mr. Dye
Page2
August 16, 2006

In an opinion dated September 17, 2003, we addressed the issue of whether a commissioned officer of the DNR may serve in another office without violating the constitutional dual office prohibition. In that opinion, we noted previous opinions in which we determined commissioned officers of the DNR are officers for purposes of dual office holding. Op. S.C. Atty. Gen., September 17, 2003. However, the requester asked whether commissioned DNR officers are "constables" and therefore, exempt due to the constitutional amendment to article XVII, section 1A exempting constables from the dual office holding prohibition. Id.

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We analyzed this issue in light of Richardson v. Town of Mount Pleasant, 350 S.C. 291, 566 S.E.2d 523 (2002). In that case, the Supreme Court considered whether a municipal police officer is a constable and therefore, is exempt from the dual office prohibition. Richardson, 350 S.C. at 291, 566 S.E.2d at 523. In analyzing that position, the Court noted unlike DNR officers, it is not required or authorized to obtain a state constable commission from the Governor. Id. at 296-97, 566 S.E.2d at 526-27. The Court appeared to heavily rely on a commission from the Governor in determining whether or not the position is that of a constable. The Court ultimately found municipal police officers, which are not commissioned by the Governor, are not constables. In our 2003 opinion, considering the Court's references to DNR officers, we stated: "it is evident that the Court has determined (in dicta) that DNR officers are included within the exception." Op. S.C. Atty. Gen., September 17, 2003. Furthermore, we concluded:

Based upon the Court's analysis in Richardson v. Town of Mt. Pleasant, supra, it appears that DNR officers who are commissioned by the Governor fall within the exemption for "constables" contained in Article XVII, § 1A. Thus, any DNR officer who is in such category and who holds another office would not be dual office holding in contravention of the Constitution. The information which you have provided indicates that generally DNR officers do receive a commission from the Governor. You have enclosed information which indicates that regular (Class 1) enforcement officers as well as deputy law enforcement officers fall into this category. Accordingly, such officers, as well as any other DNR officials who are in this category, are "constables" within the meaning ofArticle XVII, § 1A's exemption.

In a conversation with you, you confirmed you were appointed to your position as a DNR enforcement officer by receiving a commission from the Governor. Thus, based on Richardson and our 2003 opinion, we believe you are a constable for purposes of article XVII, section I A and therefore, your position is exempt from the constitutional prohibition on dual office holding. As

Mr. Dye
Page 3
August 16, 2006

such, your service as a DNR enforcement officer would not prohibit you from serving in another office, such as a member of the Sumter County School District Two School Board. Very truly yours,

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Assistant Attorney General
REVIEWED AND APPROVED BY:

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Assistant Deputy Attorney General